Approval of Section 112(l) Program of Delegation; Indiana

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[IN 74-3; FRL-5854-4]

Approval of Section 112(l) Program of Delegation; Indiana

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a request for delegation of the Federal air

toxics program contained within 40 CFR parts 61 and 63 pursuant to

section 112(l) of the Clean Air Act (CAA) of 1990. The State's

mechanism of delegation involves State rule adoption of all existing

and future section 112 standards unchanged from the Federal standards.

The actual delegation of authority of individual standards will be in

the form of a letter from EPA to the Indiana Department of

Environmental Management (IDEM). This request for approval of a

mechanism of delegation encompasses all sources not covered by the Part

70 program.

DATES: This action will become effective August 7, 1997.

ADDRESSES: Copies of the State's submittal and other supporting

information used in developing the approval are available for

inspection during normal business hours at the following location: EPA

Region 5, 77 West Jackson Boulevard, AR-18J, Chicago, Illinois, 60604.

Please contact Sam Portanova at (312) 886-3189 to

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arrange a time if inspection of the submittal is desired.

FOR FURTHER INFORMATION CONTACT: Sam Portanova, EPA Region 5, AR-18J,

77 West Jackson Boulevard, Chicago, Illinois, 60604, (312) 886-3189.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

Section 112(l) of the CAA enables the EPA to approve State air

toxics programs or rules to operate in place of the Federal air toxics

program. The Federal air toxics program implements the requirements

found in section 112 of the CAA pertaining to the regulation of

hazardous air pollutants. Approval of an air toxics program is granted

by the EPA if the Agency finds that the State program: (1) is ``no less

stringent'' than the corresponding Federal program or rule, (2) the

State has adequate authority and resources to implement the program,

(3) the schedule for implementation and compliance is sufficiently

expeditious, and (4) the program is otherwise in compliance with

Federal guidance. Once approval is granted, the air toxics program can

be implemented and enforced by State or local agencies, as well as EPA.

Implementation by local agencies is dependent upon appropriate

subdelegation.

On February 7, 1996, Indiana submitted to EPA a request for

delegation of authority to implement and enforce the air toxics program

under section 112 of the CAA. On February 29, 1996, EPA found the

State's submittal complete. In this notice EPA is taking final action

to approve the program of delegation for Indiana.

EPA published a direct final rule approving Indiana's request for

delegation of authority to implement and enforce the air toxics program

under section 112 in the April 1, 1997, Federal Register (62 FR 15404).

EPA also published a proposed approval of Indiana's request in the

April 1, 1997, Federal Register (62 FR 15453). In the event that EPA

received adverse comments, it would withdraw the direct final rule and

publish a final action based on the proposed rule. EPA received a

public comment on this action on April 30, 1997. As a result of that

public comment, the April 1, 1997, direct final rule will be removed.

In this document, EPA addresses the public comment and takes final

action to approve Indiana's request for delegation of authority to

implement and enforce the air toxics program under section 112. This

action is based on the April 1, 1997, proposed rule (62 FR 15453).

II. Review of State Submittal

A. Program Summary

Requirements for approval, specified in section 112(l)(5), require

that a State's program contain adequate authorities, adequate resources

for implementation, and an expeditious compliance schedule. These

requirements are also requirements for an adequate operating permits

program under Part 70 (40 CFR 70.4). On November 14, 1995, EPA

promulgated a final interim approval under Part 70 of the State of

Indiana's Operating Permit Program. The notice included the approval of

a mechanism for delegation of all section 112 standards for sources

subject to the Part 70 program. Sources subject to the Part 70 program

are those sources that are operating pursuant to a Part 70 permit

issued by the State, local agency, or EPA. Sources not subject to the

Part 70 program are those sources that are not required to obtain a

Part 70 permit from either the State, local agency, or EPA. This action

supplements the Part 70 rulemaking in that Indiana will have the

authority to implement and enforce the section 112 air toxics program

regardless of a source's Part 70 applicability. The Indiana program of

delegation for sources not subject to Part 70 will not include

delegation of section 112(r) authority or section 112(i)(5) Early

Reductions Program authority.

As stated above, this notice constitutes EPA's approval of

Indiana's program of delegation of all existing and future air toxics

standards, except for section 112(r) standards as they pertain to non-

Part 70 sources. This delegation is for State rule adoption of all

existing and future section 112 standards unchanged from the Federal

standards delegation. Indiana intends to seek such delegation for all

section 112 standards with the exception of section 112(r). The Indiana

program of delegation will operate as follows:

1. For existing section 112 standards, IDEM has submitted a

schedule for their adoption into the State regulations.

2. For a future section 112 standard for which IDEM intends to

accept delegation, EPA will automatically delegate the authority to

implement a standard to the State by letter unless IDEM notifies EPA

differently within 45 days of EPA final promulgation of the standard.

Upon receipt of the EPA letter, the State will be responsible for the

implementation of the standard. Some activities necessary for effective

implementation of the standard include receipt of initial

notifications, recordkeeping, reporting and generally assuring that

sources subject to the standard are aware of its existence.

3. IDEM will adopt the standard unchanged from the Federal standard

into the State regulations as expeditiously as practicable. Indiana

Code (IC) 13-7-7-5 requires IDEM to adopt such standards within 9

months of the effective date of the Federal standard.

4. Upon completion of regulatory action, IDEM will submit to EPA

proof of rule adoption.

5. EPA will respond with a letter delegating enforcement authority

to the State. EPA will enforce the standard until such time the State

has been delegated the enforcement authority.

Indiana will assume responsibility for the timely implementation

and enforcement required by the standard, as well as any further

activities agreed to by IDEM and EPA. When deemed appropriate, IDEM

will utilize the resources of its Small Business Assistance Program to

assist in general program implementation.

B. Criteria for Approval

On November 26, 1993, EPA promulgated regulations to provide

guidance relating to the approval of State programs under section

112(l) of the CAA. 58 FR 62262. That rulemaking outlined the

requirements of approval with respect to various delegation options.

The requirements for approval, pursuant to section 112(l)(5) of the

CAA, of a program to implement and enforce Federal section 112 rules as

promulgated without changes are found at 40 CFR 63.91. Any request for

approval must meet all section 112(l) approval criteria, as well as all

approval criteria of 40 CFR 63.91. A more detailed analysis of the

State's submittal pursuant to 40 CFR 63.91 is contained in the

Technical Support Document included in the docket of this rulemaking.

Under section 112(l) of the CAA, approval of a State program is

granted by the EPA if the Agency finds that it: (1) is ``no less

stringent'' than the corresponding Federal program, (2) that the State

has adequate authority and resources to implement the program, (3) the

schedule for implementation and compliance is sufficiently expeditious,

and (4) the program is otherwise in compliance with Federal guidance.

C. Analysis

EPA is approving Indiana's mechanism of delegation because the

State's submittal meets all requirements necessary for approval under

section 112(l). The first requirement is that the program be no less

stringent than the Federal program. The Indiana program is no less

stringent than the

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corresponding Federal program or rule because the State has requested

delegation of all standards unchanged from the Federal standards.

Second, the State has shown that it has adequate authority and

resources to implement the program. The Indiana Air Pollution Control

Board has statutory authority to adopt rules necessary to implement the

Federal Clean Air Act, as amended by the Clean Air Act Amendments of

1990. IC 13-1-1-4. This authority includes the ability to adopt federal

section 112 rules as promulgated without change. Indiana has adopted

several existing section 112 rules, is in the process of adopting the

remaining existing section 112 rules, and commits to the expeditious

adoption of future section 112 rules. Adequate resources will be

obtained through section 105 grant monies awarded to States by EPA,

through State matching funds, and through any monies from the State's

Title V program that can be used to fund acceptable Title V activities

with respect to these non-Part 70 sources.

Third, upon promulgation of a standard, Indiana will immediately

begin activities necessary for timely implementation of the standard.

These activities will involve identifying sources subject to the

applicable requirement, education and outreach to affected sources, and

providing assistance to sources in completing and submitting initial

notifications. Indiana has already conducted such activities for

several section 112 standards. In addition, Indiana is committed to

adopting section 112 standards into the State regulations within 9

months of Federal promulgation. This schedule is sufficiently

expeditious for approval.

Fourth, nothing in the Indiana program for delegation is contrary

to Federal guidance.

D. Determinations.

In approving this delegation, EPA expects that the State will

obtain concurrence from EPA on any matter involving the interpretation

of section 112 of the Clean Air Act or 40 CFR part 63 to the extent

that implementation, administration, or enforcement of these sections

have not been covered by EPA determinations or guidance.

III. Response to Public Comment

The EPA received one comment on the April 1, 1997, Federal Register

notice. RSR Corporation (RSR) submitted comments on behalf of its

wholly owned subsidiary Quemetco, Incorporated. RSR commented that

``EPA has stated its intent to issue substantial revisions to the

secondary lead NESHAP provisions.'' RSR expressed concern that IDEM

could adopt unchanged federal regulations that ``are or will be

obsolete'' and urged EPA to delay implementation of the delegation of

the NESHAP for secondary lead smelters until EPA has promulgated final

revisions to the secondary lead NESHAP.

EPA's approval of the delegation of authority to implement and

enforce the air toxics program under section 112 only provides a

mechanism for the State to accept delegation of authority to implement

NESHAPs. State implementation of a particular NESHAP would not occur

until Indiana adopts the standard into the State rule. Therefore,

approval of the delegation of authority under 112(l) would not cause

the State to receive automatic delegation of a standard. In addition,

the delegation of authority under section 112(l) for Title V sources

was established as part of the Indiana Title V program interim approval

rulemaking (60 FR 57188). As a major source, Quemetco will be subject

to the Title V program and, thus, Indiana already has delegation of

authority under section 112(l) for this source. EPA's approval of this

delegation need not be delayed in order to prevent the State

implementation of the secondary lead NESHAP.

Furthermore, delegation of authority under section 112(l) and

subsequent adoption of the State rule only transfers authority to

implement and enforce a NESHAP from the EPA to the State. Until this

action occurs, the NESHAP is implemented and enforced by EPA and

sources are subject to all requirements of the Federally-promulgated

standard.

RSR also requested that EPA ``establish the secondary lead NESHAP

as the lead standard for use in attainment areas in the country.'' ``To

promote consistency and environmental protection, RSR requests that EPA

determine that the secondary lead NESHAP should replace existing,

scattered lead emission standards in attainment areas.'' Since this

action only addresses the delegation of authority to implement and

enforce the air toxics program under section 112 to the State of

Indiana, it will not address the issue of establishing lead standards

in attainment areas nationwide.

RSR requests that, in this delegation, EPA ``direct Indiana to use

the NESHAP to replace the standard for Quemetco in Marion County

because those standards were developed in a piecemeal, fragmented

fashion.'' This action only addresses delegation of authority under

112(l) and not State implementation plan rules which have been adopted

by Indiana. Therefore, EPA will not address Indiana's regulatory

actions for the State implementation plan in this rulemaking. Moreover,

the CAA gives States the authority and primary responsibility to

develop rules to address nonattainment areas within their borders. In a

given case, a State may determine it is necessary to adopt or maintain

requirements different from those contained in the nationally

applicable rules.

IV. Final Action

The EPA is promulgating final approval of the February 7, 1996,

request by the State of Indiana for delegation of section 112 standards

unchanged from Federal standards because the request meets all

requirements of 40 CFR 63.91 and section 112(l) of the CAA. Upon the

effective date of this rule, all existing section 112 standards which

have been adopted unchanged into the State rules are delegated to the

State of Indiana. Future delegation of the section 112 standards to the

State will occur upon EPA's promulgation of the standard according to

the procedures outlined earlier in this rule.

Upon the effective date of this action, all notifications, reports

and other correspondence required under section 112 standards should be

sent to the State of Indiana rather than to the EPA, Region 5, in

Chicago. Affected sources should send this information to: Indiana

Department of Environmental Management, Office of Air Management, 100

North Senate Avenue, P.O. Box 6015, Indianapolis, Indiana 46206-6015.

In this action, EPA approves the delegation of the Federal air

toxics program pursuant to section 112(l) of the CAA. EPA published a

proposed approval of this delegation on April 1, 1997, and is granting

final approval with this rulemaking. The final approval shall be

effective on August 7, 1997.

Copies of the State's submittal and other information relied upon

for the final approval of the requested delegation are contained in a

docket maintained at the EPA Regional Office. The docket is an

organized and complete file of all the information submitted to, or

otherwise considered by, EPA in the development of this final approval.

The docket is available for public inspection at the location listed

under the ADDRESSES section of this document.

Nothing in this action should be construed as permitting, allowing

or establishing a precedent for any future request for revision to the

State's delegated air toxics program. EPA shall consider each request

for revision to the

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State's delegated air toxics program in light of specific technical,

economic, and environmental factors and in relation to relevant

statutory and regulatory requirements.

Administrative Requirements

A. Executive Order 12866

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a

July 10, 1995, memorandum from Mary D. Nichols, Assistant Administrator

for Air and Radiation. The Office of Management and Budget (OMB) has

exempted this regulatory action from Executive Order 12866 review.

B. Regulatory Flexibility

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. (5 U.S.C. 603 and 604.)

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

Delegation of pre-existing Federal requirements under section 112

of the CAA does not create any new requirements, but simply allows the

State to enforce Federal requirements that have been or will be

separately promulgated. Therefore, because this Federal delegation

approval does not impose any new requirements, the Administrator

certifies that it does not have a significant impact on any small

entities affected. Moreover, due to the nature of the Federal-State

relationship under the CAA, preparation of a flexibility analysis would

constitute Federal inquiry into the economic reasonableness of the

State action. The CAA forbids EPA to base its actions concerning State

plans on such grounds. Union Electric Co. v. EPA., 427 U.S. 246, 256-66

(1976); 42 U.S.C. 7410(a)(2).

C. Unfunded Mandates

Under sections 202 of the Unfunded Mandates Reform Act of 1995,

signed into law on March 22, 1995, EPA must undertake various actions

in association with proposed or final rule that include a Federal

mandate that may result in estimated costs to State, local, or tribal

governments in the aggregate; or to the private sector, of $100 million

or more. This Federal action approves delegation of pre-existing

Federal requirements to the State. No new Federal requirements are

imposed. Accordingly, no additional costs to local or tribal

governments, or the private sector, result from this action. EPA

believes that the cost of any additional authority voluntarily

undertaken by the State will be less than $100 million.

D. Submission to Congress and the General Accounting Office

Under section 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted a report

containing this rule and other required information to the U.S. Senate,

the U.S. House of Representatives, and the Comptroller General of the

General Accounting Office prior to publication of the rule in today's

Federal Register. This rule is not a major rule as defined by section

804(2).

E. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by September 8, 1997. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule for the purposes of judicial

review nor does it extend the time within which a petition for judicial

review may be filed, and shall not postpone the effectiveness of such

rule or action. This action may not be challenged later in proceedings

to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 63

Environmental Protection, Administrative practice and procedure,

Air pollution control, Hazardous substances, Intergovernmental

relations.

Authority: 42 U.S.C. 7401-7671(q).

Dated: June 26, 1997.

David A. Ullrich,

Acting Regional Administrator.

[FR Doc. 97-17737 Filed 7-7-97; 8:45 am]

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